In another affirmation that the Religious Freedom Restoration Act (RFRA) protects the constitutional right of free exercise for military service members, a federal judge recently ruled that the statute protected the rights of a Sikh to receive a grooming accommodation while enrolled as an Army ROTC cadet at Hofstra University.
After the Army denied the student’s accommodation request which was made when he sought to enter ROTC, the ACLU filed suit on behalf of the student, alleging that the denial violated RFRA (and citing the standard under the recent DOD Instruction 1300.17). In its complaint, the ACLU asserted the Army policy “substantially burdens his religious exercise because it mandates conduct that is prohibited by his religious beliefs and substantially pressures him to modify his behavior in violation of his faith.”
In ruling on these claims, the federal court in the District of Columbia noted that while there is judicial deference to military decision making, RFRA also clearly applies to the military; indeed, “[t]he Department of Defense expressly incorporated RFRA into its own regulations effective January 22, 2010.”
Under RFRA, if an individual can show that government action has substantially burdened their religious exercise, then the government has to show it has a compelling reason for burdening the belief, and has done so in the least restrictive way possible.
In this case, there was no dispute that the plaintiff’s religious beliefs were sincere, and the court found that they were substantially burdened:
“Therefore, there is no dispute that the Army’s refusal to grant plaintiff the accommodation that would enable him to enroll in ROTC while maintaining his religious practice was a government action that required plaintiff ‘to choose between following the tenets of [his] religion and receiving a governmental benefit.’” Such a denial “constitutes a ‘substantial burden’ under RFRA.”
The court acknowledged that the military is a distinct area of society with very unique concerns regarding order and discipline. However, Congress clearly meant RFRA to apply to the military and the statute clearly applies to situations like this.
Its analysis continued: “This case appears to be the first to squarely present the question of how a court is supposed to incorporate traditional deference to the military into the RFRA strict scrutiny analysis.” Therefore, the court looked to an area to which Congress also clearly meant RFRA to apply—prisons. In that context, the Supreme Court ruled earlier this year in Holt v. Hobbs that a sister statute with the same standard—the Religious Land Use and Institutionalized Persons Act—required the strict scrutiny standard to be applied to each situation in a “‘more focused’ inquiry” assessing whether the religious exemption can be granted.
The court dismissed the Army’s arguments that earlier cases—including Goldman v. Weinberger—require deference here, noting that “those cases predate RFRA.” Instead, the court chose to look to the framework laid out in Holt.
The Army also tried to argue for deference on the theory that it was better equipped to deal with social changes on its own (such as the repeal of “Don’t Ask, Don’t Tell”), but the court rejected that argument, noting that “even if it involves an important matter of public policy and evolving social norms, Congress has already placed a thumb on the scale in favor of protecting religious exercise, and it has assigned the Court a significant role to play.”
The court continued by ruling that the Army has not shown that denying the accommodation here (while granting numerous such accommodations in other cases) advances any compelling interest of the military. Notably, “[t]he Army conducted an internal examination of the effect of [another Sikh’s] religious accommodation on his service, and the study concluded that “the Soldier’s religious accommodations did not have a significant impact on unit morale, cohesion, good order, and discipline,” and that it “had no significant impact on his own, or any other Soldier’s, health and safety.”
The Army’s heavy reliance on uniformity in denying this accommodation and assertion that “compliance with Army grooming standards facilitates ‘the ability to assess a Soldier’s competency and attention to detail’” is irrelevant to the religious basis of the requested accommodation here and fails to satisfy “the individual assessment that is fundamental under RFRA.”
For “the accommodation this plaintiff seeks does not stem from any lack of self-control, dedication, or attention to detail. To the contrary: plaintiff seeks an accommodation because he faithfully adheres to the strict dictates of his religion. So even if, in some cases, a soldier’s failure to follow the Army’s standards might signal a rebellious streak or reflect a lack of impulse control or discipline, LTG McConville’s decision fails to grapple with the fact that any deviation from the rules on plaintiff’s part flows from a very different source. And therefore, the decision lacks the individual assessment that is fundamental under RFRA.”
In concluding, the court affirmed that it would not give blind deference to the claims of even very senior military decision makers as sufficient to trump religious exercise rights:
“Notwithstanding [LT General McConville’s] thirty-four years of experience in the Army . . . and his superior judgment about military matters, adopting his conclusion [that the accommodation should be denied] without more would entail abdicating the role that RFRA requires the Court to play.
Finally, the court noted that even if there was a compelling interest here, the Army had not accomplished it by the least restrictive means—it had rejected the plaintiff outright, instead of at least permitting him to initially enroll in the ROTC program (during which time he is not yet commissioned).
The ACLU did well in laying out robust religious freedom arguments so far in this case. It merely remains for the organization (and others like it) to do so in other contexts. These advocates must see that after (rightly) supporting the Sikh’s religious exercise in this case, such support must flow to all religious exercise in order to consistently support religious freedom and the First Amendment. Anything short of that is picking and choosing the contexts in which the advocate wants the First Amendment to apply—and that is certainly not supportive of constitutional rights for all.
This case is certainly a win for the free exercise of religion in the military. It is also a case likely to produce odd bedfellows; the ACLU is supporting robust free exercise in a case involving a Sikh, but conservative Christians, Muslims and others concerned about religious freedom in the military will see it as helpful to their own causes. And rightly so. Congress passed a statute restoring strong free exercise protections. It did so with strong bi-partisan support, and made clear the law applies to the military. At least for now, a court has affirmed that the statutory law on religious freedom in the military supports a strong and robust free exercise of religion.